Whitaker v. Coca-Cola Co. USA

• Decision Date: 07 September 2001
• Citation: 812 So.2d 1252
• Parties: Jonie WHITAKER v. COCA-COLA COMPANY USA, a DIVISION OF The COCA-COLA COMPANY, and Clifton E. Edwards.
• Court: Alabama Court of Civil Appeals

812 So.2d 1252

Jonie WHITAKER v. COCA-COLA COMPANY USA, a DIVISION OF The COCA-COLA COMPANY, and Clifton E. Edwards.

2991113.

Court of Civil Appeals of Alabama.

September 7, 2001.

W. Lee Pittman and C. Chris Cochran of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant.

Crawford S. McGivaren, Jr., and Melanie M. Bass of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellees.

On Application for Rehearing

CRAWLEY, Judge.

The opinion of July 20, 2001, is withdrawn, and the following is substituted therefor.

On July 2, 1991, Jonie Whitaker, a tractor-trailer driver, was driving his "double-trailer rig" westbound on U.S. Highway 78, near Winfield. As he approached the old Mallard Creek Bridge,¹ Whitaker noticed another tractor-trailer, driven by Clifton E. Edwards, in the eastbound lane. As Whitaker approached the bridge, it started raining and became very windy. Edwards's truck appeared to Whitaker to be moving erratically, and Whitaker anticipated that it might jackknife. In anticipation of the probable jackknife, Whitaker decided to stop his truck to avoid a collision with Edwards's truck. He applied his brakes when he was approximately 150 to 200 feet from the eastern end of the bridge. According to Whitaker, braking suddenly on the rain-slick roadway caused his truck to collide with the bridge. Edwards's truck, meanwhile, had jackknifed and had come to rest at some point before reaching the western end of the bridge. The two trucks did not collide.

Whitaker sued Coca-Cola Company USA, a division of The Coca-Cola Company ("Coca-Cola"), and Edwards, alleging that they had negligently, willfully, and/or wantonly caused the accident and his resulting injuries. Coca-Cola and Edwards filed a joint motion for summary judgment. The trial court entered a summary judgment in their favor. Whitaker appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Whitaker contends that he presented substantial evidence indicating that negligence on the part of Edwards caused the accident. Coca-Cola and Edwards argue that the undisputed evidence shows that it was negligence on the part of Whitaker himself that had caused his accident, that is, that Whitaker was contributorily negligent and is precluded from recovery. After reviewing the extensive record, including the affidavits and deposition testimony of two experts proffered by Coca-Cola and Edwards, as well as the testimony of both drivers and a witness to the accident, we conclude that the summary judgment, insofar as it relates to the negligence claim, was entered in error. Because Whitaker raises no argument concerning the summary judgment as it relates to the willfulness or wantonness claims, the summary judgment, insofar as it relates to those claims, is affirmed. See Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995) (stating that when an appellant fails to argue the propriety of an aspect of the judgment, the issue is not before the appellate court).

Whitaker alleged in his complaint that negligence on the part of Edwards caused Edwards's truck to jackknife and that the jackknifing of Edwards's truck caused Whitaker, in an effort to avoid a collision with Edwards, to collide with the bridge. Edwards and Coca-Cola argued in their joint motion for summary judgment that Whitaker himself was negligent, in failing to maintain control over his truck while executing a controlled stop, and that his negligence was the true cause of his accident. Whitaker argued in response to the summary-judgment motion that Edwards's jackknifing caused a "sudden emergency" and that, under the sudden-emergency doctrine, Whitaker's response to that emergency was reasonably prudent under the circumstances.

We review a summary judgment de novo; we apply the same standard as the trial court applied. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038. "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999); West, 547 So.2d at 871, and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala. 1989), for further discussion of the application of the summary-judgment standard.

Our supreme court has long stated that "summary judgments are rarely appropriate in negligence actions and that summary judgments in such cases will be reviewed cautiously." Briggins v. Shelby Med. Ctr., 585 So.2d 912, 914 (Ala.1991); see also Tolbert v. Gulsby, 333 So.2d 129, 136 (Ala.1976) (stating that, because of questions of proximate cause and reasonableness, summary-judgment motions will not ordinarily be granted in negligence actions). Because the issue of contributory negligence involves considerations similar to those raised in a negligence action, our supreme court has stated that "a summary judgment based on contributory negligence is seldom proper." Osmer v. Belshe Indus., Inc., 585 So.2d 791, 796 (Ala.1991) (citations omitted). "Our law of summary judgment requires a court to leave for the jury the question of contributory negligence when there is an issue of material fact on that question upon which reasonable persons could disagree." Osmer, 585 So.2d at 796 (citations omitted).

Recently, our supreme court explained that the burden on the party moving for a summary judgment depends on whether that party has the burden of proof at trial. Ex parte General Motors, 769 So.2d at 909 (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). Because at trial Edwards and Coca-Cola would have the burden of establishing the defense of contributory negligence, see Central Alabama Elec. Coop. v. Tapley, 546 So.2d 371, 381 (Ala.1989), they were required to "`support [their] motion with credible evidence, using any of the materials specified in Rule 56(c), [Ala.] R. Civ. P. ("pleadings, depositions, answers to interrogatories, and admissions on file, along with the affidavits."). The movant[s'] proof must be such that [they] would be entitled to a [judgment as a matter of law (JML)] if this evidence was not controverted at trial.'" Ex parte General Motors, 769 So.2d at 909. They presented the affidavits of two experts, Thomas Talbott, an accident reconstructionist, and Jon Cook, a safety consultant; the depositions of both drivers, Edwards and Whitaker; the deposition of Mary Tucker, an eyewitness to the accident; the deposition of Clyde Reaves, an Alabama state trooper who responded to the accident to direct traffic; and portions of the deposition of Clyde Welch, a witness who lived near the accident scene and who testified concerning the distance from the bridge to the point at which Edwards's truck came to rest. These submissions, they contend, demonstrate that there is no genuine issue of material fact on the question whether negligence on the part of Whitaker was the actual cause of his accident.²

According to Whitaker, the following events transpired before the accident: He was driving west on Highway 78 at a speed of 45 miles per hour (mph). Although it had been raining earlier that day as Whitaker drove near Birmingham, it had been partly cloudy on his drive toward Winfield. As he approached the bridge, it began raining again. He crested a hill before seeing the bridge, which was located down an incline. As he surveyed the roadway ahead, Whitaker noticed the Coca-Cola truck driven by Edwards as it approached in the opposite lane. Edwards was heading east. Whitaker noticed that Edwards's truck was "bouncing up and down." From that observation, Whitaker concluded that Edwards might be losing control of his truck and that it might jack-knife. He looked in his mirrors to observe the traffic around him and quickly returned his gaze to the road ahead, where Edwards had, as Whitaker had anticipated, jackknifed his truck. According to Whitaker, at the time he saw Edwards's truck "bouncing," he was 150 to 200 feet from the eastern end of the bridge; Edwards was, according to Whitaker's estimate, 250 to 300 feet from the western end of the bridge. Whitaker estimated that Edwards's truck, when it jackknifed, was 100 to 125 feet from the western end of the bridge. Whitaker described the road as rough and commented that his truck must have "shot into the bridge" because, he said, "it had just started raining and the road is always slicker [right] after it starts raining." He had started slowing down when he first suspected that Edwards was about to jackknife, so he explained that he was not going 45 mph when he hit the bridge.

When questioned about the accident report completed by the state trooper who responded to the accident, Whitaker stated that he disagreed with several aspects of the report. He specifically contradicted the stated speed of 55 mph and the statement that his accident had been caused by strong winds that blew his truck into the bridge. He stated, in response to further questioning, that the wind had not caused his accident.

Edwards testified as follows: He said he was driving east on Highway 78, headed to Eldridge. His trailer was empty, and his partner was sleeping in the overhead sleeping...